posted by Edward Nichols, MSW, LCSW-R on Feb 22
A caller from Kentucky asks, “Can I sue my child’s therapist for the incompetent work she performed on my child causing me great harm?” She explained that the case involved “recovered memories” of child sexual abuse.
The answer is, “Perhaps”. This is an emerging area of the law, particularly in the case of therapists participating in treatment involving so-called “recovered memories”. A landmark case in New Hampshire, Hungerford v. Jones, 722 A.2d 478 (N.H. 1998), explicates the issues.
In Hungerford the New Hampshire Supreme Court ruled that a mental health professional owed a duty of care to the father of the therapist’s adult client. In his lawsuit against the therapist, the non-client father alleged that the therapist (a) lacked the training and experience needed to work with recovered memories of abuse, (b) incorrectly represented herself as qualified to treat such issues, (c) failed to inform the client of the controversy regarding repressed memories and the uncertainty of some of the therapeutic techniques employed to uncover such memories, (e) encouraged the client to cut off contact with the father, and (f) communicated with the police to validate the daughter’s accusations against her father.
In concluding that the therapist owed a duty of care to the non-client father, the court emphasized the harm caused by false accusations of child sexual abuse:
It is indisputable that “being labeled a child abuser [is] one of the most loathsome labels in society” and most often results in grave physical, emotional, professional, and personal ramifications This is particularly so where a parent has been identified as the perpetrator. Even when such an accusation is proven to be false, it is unlikely that social stigma, damage to personal relationships, and emotional turmoil can be avoided. In fact, the harm caused by misdiagnosis often extends beyond the accused parent and devastates the entire family. (Hungerford, p.480)
The court ruled that the likelihood of harm to the accused increases when the accused is the client’s parent, when the therapist lacks proper qualifications, when the therapist uses techniques that are not generlly accepted as reliable, and when the accusations are made public:
The likelihood of harm to an accused parent is exponentially compounded when treating therapists take public action based on false accusations of sexual abuse or encourage their patients to do so. Public action encompasses any effort to make the allegations common knowledge in the community. In this situation, the foreseeability of the harm is so great that pubic policy weighs in favor of imposing on the therapists a duty of care to the accused parent throughout the therapeutic process. (Hungerford, p.481)
Other courts have agreed and disagreed with the Hungerford court thus making lawsuits against mental health professionals by non-clients an open question. I have consulted on cases involving false recovered memories with successful results relying on Hungerford and similar cases.
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